Cybercrimes

Cybercrimes

If we start by considering the subject simply in terms of criminal law, crimes in the field of informatics constitute one of the most up-to-date and rapidly changing subjects of this branch of law. There may be some new acts that were never or clearly foreseen years ago and therefore not regulated among the crime types, as well as the acts foreseen with the existing crime types can be committed with new methods. In this context, the legislator had to change the existing regulations or make new regulations in parallel with the changes and developments in this field.

Information technology is the transfer of information by using electronic and technological tools and digitizing data. In this context, the concept of informatics refers to data transfers made with technological tools such as personal computers, smart phones, tablets. In addition to this, especially Facebook, twitter, instagram, youtube etc. social media platforms, e-mail and telegram, whatsapp etc. applications are also considered as information systems. Lawyers working on cybercrime or private law cases committed through these systems are called informatics lawyers.

With the increase in the use of internet technologies and social media, crimes such as insults, threats, blackmail and violation of privacy have increased on these platforms. An IT lawyer can also undertake the necessary legal process against crimes and torts committed through social media.

What are Cybercrime or Cybercrime?

The cyber crimes regulated in the Turkish Penal Code No. 5237 are as follows:

TCK Article 243, The Crime of Entering the Information System,
TCK Article 244, Crime of Blocking, Destroying, Making Inaccessible, Destroying or Changing Data,
TCK Art. 245, Offense of Abuse of Bank or Credit Card,
TCK Art. 245/A, Offense of Using Forbidden Device or Program,
my TCK. 135, Offense of Recording Personal Data,
TCK Article 136, Offense of Unlawful Giving or Capturing Data,
TCK Article 138, Crime of Non-Destruction of Data,
TCK Art. 124, Offense of Blocking Communication,
TCK Article 132, Crime of Violation of Confidentiality of Communication,
TCK Article 142. Crime of Theft Committed by Using the Information System,
TCK Art. 158. Fraud Crime Committed by Using Information Systems.
Cybercrimes in the Turkish Penal Code No. 5237
Along with the regulation of the crime of unauthorized access to the computer system in the Turkish Penal Code No. 5237, parallelism has been achieved in our legal system with the illegal access regulation stipulated in Article 2 of the European Cybercrime Convention.

The Turkish Penal Code No. 5237 was accepted on 29.04.2004 and entered into force on 01.06.2005. In the Law No. 5237, cyber crimes are included in the tenth chapter under the title of “Crimes in the Field of Information”, and in the third part of the second book of the Law, titled “Crimes Against Society”. In the section of crimes in the field of informatics; The crime of illegally entering and staying in the information system, the crime of preventing, corrupting, destroying or changing the functioning of the information system, the crime of providing unlawful benefits through the information system, the crime of misuse of bank or credit cards, and the crime of using a prohibited device or program. .

Other crimes committed through informatics are; The crime of recording personal data, the crime of illegally giving or obtaining the data, the crime of not destroying the data, the crime of preventing the communication, the crime of violating the confidentiality of the communication, the crime of theft committed through the use of information systems and the crime of fraud committed through the use of information systems.

The Crime of Entering or Staying in the Information System Unlawfully

It is stated in the article of the law that criminal sanctions will be imposed on the person or persons who illegally enter or stay in information systems. In practice, the crime of entering the system is usually committed in order to obtain information and data in companies’ accounts or databases. In addition, it is the illegal access of individuals to accounts on the Internet where their information is hidden.

The text of article 243 of the Turkish Penal Code No. 5237, which regulates the crime of entering the information system, is as follows:

(1) Any person who illegally enters or remains in the whole or part of an information system is sentenced to imprisonment of up to one year or a judicial fine.

(2) If the acts defined in the above paragraph are committed about the systems that can be used for a price, the penalty to be imposed is reduced by half.

(3) If the content of the system is destroyed or changed due to this act, he is sentenced to imprisonment from six months to two years.

Penalty for the Crime of Entering the Information System

In the event that the basic form of the crime is committed, an optional sanction is envisaged for the perpetrator. In this context, the perpetrator or perpetrators may be punished with a prison sentence of up to one year or a judicial fine. However, in accordance with the clear provision in the law, it is not possible for the judge to decide both penalties at the same time.

In the event that the qualified form of the crime, which requires a lesser penalty, which is regulated in the second paragraph, comes into existence, it has been accepted to reduce the penalty foreseen for the basic form of the crime by half. In this case, whether the perpetrator is given a prison sentence or a fair fine, both will be reduced by half in case of the situation mentioned in the second paragraph.

The punishment to be given to the perpetrator is between six months and two years, depending on the realization of the situation in question, which is a qualified situation that requires more punishment in the third paragraph of the crime. Again pursuant to the Turkish Penal Code, criminal sanctions cannot be imposed on legal persons due to these crimes, and in accordance with the regulation in article 246 of the Turkish Penal Code, specific security measures will be imposed on legal entities whose benefits are provided unfairly by committing the crimes in this section.

Crime of Blocking, Disrupting, Destroying or Modifying the Functioning of the Information System

If the system is prevented from working, the data is destroyed or damaged to prevent the system from working, penal sanctions are foreseen, for example; Attachment files etc. to people via social media accounts or e-mail, message or post. It is possible to commit the crime of blocking, corrupting, destroying or changing data by means of viruses and all similar methods of malware infiltration by all means.

In Article 244 of the Turkish Penal Code No. 5237, blocking the system as another type of crime in the field of informatics; The crime of corrupting, destroying or changing data is regulated as follows:

(1) A person who hinders or disrupts the operation of an information system is punished with imprisonment from one year to five years.

(2) A person who corrupts, destroys, changes or renders inaccessible data in an information system, places data on the system, or sends existing data to another place, is sentenced to imprisonment from six months to three years.

(3) In case these acts are committed on the information system of a bank or credit institution or a public institution or institution, the penalty to be imposed is increased by half.

(4) If the person’s gaining an unfair advantage for himself or someone else by committing the acts defined in the above paragraphs does not constitute another crime, he is sentenced to imprisonment from two years to six years and a judicial fine up to five thousand days.

Penalty for Blocking, Destroying, Destroying or Modifying the System

A prison sentence of one to five years is foreseen for the perpetrator who commits a crime within the scope of the first paragraph, and if the perpetrator’s action or actions are within the scope of the second paragraph, the perpetrator is sentenced to imprisonment from six months to three years.

However, if these acts are committed on the information system of a bank or credit institution or a public institution or institution, the penalty to be imposed is increased by half.

Finally, in cases where the crime is within the scope of the fourth paragraph, it is regulated that a sentence of imprisonment from two to six years and a judicial fine of up to five thousand days will be imposed.

Misuse of Bank and Credit Cards Crime

In case of depositing, withdrawing, transferring money, buying and selling foreign currency without the consent or knowledge of the bank or credit card holders, a crime may be committed. If the card information is taken from the computer, a crime will be committed. However, due to the fact that the seized card and account information is used as a tool in the crimes of theft and fraud, it is frequently seen that the real owners of the seized cards are also unfairly prosecuted.

In Article 245 of the Turkish Penal Code No. 5237, the crime of misuse of bank and credit cards is regulated as follows.

(1) If a person who seizes or holds a bank or credit card belonging to another person, for any reason, uses it or makes someone else use it without the consent of the cardholder or the person to whom the card is to be given, imprisonment from three years to six years, and shall be punished with a judicial fine of up to five thousand days.

(2) The person who produces, sells, transfers, buys or accepts fake bank or credit cards by associating with the bank accounts of others is punished with imprisonment from three to seven years and a judicial fine up to ten thousand days.

(3) A person who benefits himself or someone else by using a bank or credit card that has been fraudulently created or forged, shall be sentenced to imprisonment from four years to eight years and a judicial fine up to five thousand days, unless the act does not constitute another crime requiring a heavier penalty. .

(4) The crime in the first paragraph; In the event that it is committed to the detriment of one of the spouses, for whom a separation decision has not been made, b) One of the ancestors or descendants or one of the relatives of beech at this level, or the adopter or adoption, c) One of the siblings living together in the same residence is committed to the detriment of the related relative, no penalty shall be imposed.

(5) Regarding the acts within the scope of the first paragraph, the provisions of this Law regarding the offenses against the assets shall be applied.

 

Penalty for Misuse of Bank and Credit Cards

Penalty Both a judicial fine and a prison sentence are stipulated for the acts within the scope of the first paragraph. The perpetrator of the acts within this scope will be punished with imprisonment from three to six years and a judicial fine of up to five thousand days. The perpetrator of the acts within the scope of the second paragraph shall be punished with imprisonment from three to seven years and a judicial fine up to ten thousand days. The person who commits the act within the scope of the third paragraph is punished with imprisonment from four to eight years and a judicial fine up to five thousand days. In addition, specific security measures will be imposed on legal entities whose benefits are provided unfairly by committing the said crime.

Offense of Using a Forbidden Device or Program

The crime of using legal devices and programs, keyloggers, etc., which are used as a tool in the processing of computer crimes. It covers programs and should not be confused with the crime of using unlicensed programs regulated in the law on intellectual and artistic works.

In Article 245/A of the Turkish Penal Code No. 5237, the crime of using a prohibited device or program is regulated as follows.

(1) A device, computer program, password or other security code; In the event that it is made or constituted exclusively for the commission of crimes in this Section and other crimes that can be committed by using information systems as a tool, it manufactures, imports, forwards, transports, stores, accepts, sells, offers for sale, purchases, The person who gives or keeps it is punished with imprisonment from one year to three years and a judicial fine up to five thousand days.

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